BONNIFACE v NEW ZEALAND POLICE [2023] NZHC 3674

BONNIFACE v NEW ZEALAND POLICE [2023] NZHC 3674 [13 December 2023]IN THE HIGH COURT OF NEW ZEALANDCHRISTCHURCH REGISTRYI TE KŌTI MATUA O AOTEAROAŌTAUTAHI ROHECRI-2023-409-210[2023] NZHC 3674BETWEEN NATHAN BONNIFACEAppellantAND NEW ZEALAND POLICERespondentHearing: 6 December 2023Appearances: A J McKenzie for AppellantA M Harvey for RespondentJudgment: 13 December 2023JUDGMENT OF OSBORNE JIntroduction[1] Nathan Bonniface was convicted on two charges of assault using a motorvehicle as a weapon (the assault charges)1, one charge of driving while disqualified(3rd or subsequent)2 and one charge of breach of intensive supervision conditions.3Judge Couch sentenced Mr Bonniface to two years, two months and fourteen days'imprisonment on the assault charges, with shorter, concurrent sentences on the othercharges.4 He appeals the sentence on the assault charges.51 Crimes Act 1961, s 202C; maximum penalty five years' imprisonment.2 Land Transport Act 1998, ss 32(1)(a), 32(4); maximum penalty two years' imprisonment.3 Sentencing Act 2002, s 70B; maximum penalty six months' imprisonment.4 Police v Bonniface [2023] NZDC 22222.5 The appellant does not appeal against the order of disqualification made on the disqualified drivingcharge.BackgroundAssaults with a blunt instrument[2] In October 2021, Mr Bonniface was at his ex-partner's residence, where herson and his girlfriend were also present. Following an argument, he was told to leave.He was angry. He went to his car on the opposite side of the road and got into it. Heturned it around and drove through a gate down into the driveway, driving at speedtowards the victims on the driveway. He veered towards them. The victims flattenedthemselves against a wall where the driveway slightly widened out, so as to avoidbeing hit by Mr Bonniface's vehicle. He stopped the vehicle just short of where theywere.[3] The assault charges related to the two victims.Driving while disqualified (3rd or subsequent)[4] On 9 July 2022, Mr Bonniface was apprehended, driving a vehicle, despitehaving been disqualified from doing so for one year and one day on 22 July 2021.Breach of intensive supervision[5] In December 2021, Mr Bonniface was sentenced to 12 months' intensivesupervision on charges under the Misuse of Drugs Act 1975. Mr Bonniface breachedhis special condition to not possess or consume illicit substances by failing the drugtest in August 2022 and failing to present for drug tests in July and September 2022.Procedural history[6] Mr Bonniface went to trial before Judge Couch facing six charges arising fromthe October 2021 events, being assaults on three persons with a car, and assaults onthree persons with a knife. At the close of the Police case, Mr Bonniface pleadedguilty to two of the assault charges. Police withdrew the remaining four charges.The District Court sentence[7] For sentencing, Judge Couch took the two assault convictions as the leadoffending. He n ted the five years' imprisonment maximum penalty. He consideredthe offending to be premeditated, having regard to the steps Mr Bonniface took todrive onto the property when he could have driven away. The Judge considered astarting point of 16 months' imprisonment appropriate for the assault charges.[8] The Judge considered five months' imprisonment was appropriate for thedriving charge — Mr Bonniface's fifth such event.[9] The Judge assessed two months' imprisonment as appropriate for thesupervision breach.[10] The Judge's starting point was therefore 23 months' imprisonment, beingcumulative pursuant to s 84 Sentencing Act 2002 (the Act) on account of theunconnected nature of the incidents.[11] The Judge made no apparent adjustment for totality under s 85 of the Act.[12] The Judge then assessed adjustments to the initial starting point for personalfactors. He applied a 10 per cent uplift because Mr Bonniface's offending occurredwhile he was on bail. The Judge applied an additional 10 per cent uplift forMr Bonniface's criminal history — the Judge referred to his 10 convictions for assaultat various levels of seriousness, including two convictions which attracted three-strikewarnings. The Judge noted also other convictions for dishonesty, drug offending, anddriving.[13] The Judge then considered a credit for guilty pleas. He allowed an overallcredit of 5 per cent. He identified that the disqualified driving plea had been enteredpromptly whereas the supervision breach plea had been delayed for six months. HisHonour made no reduction for the guilty plea on the assault charges. Mr Bonnifacehad put police and the witnesses to proof on those charges, and witnesses had beencross-examined. The Judge referred to Hessell v R and implicitly the considerationsthat a very late plea was involved and the prosecution case was clearly established.6[14] By a process of working backwards, one may arrive close to the Judge'sfive per cent overall allowance thus:(a) 25% of 5 months — 1.25 months(b) 10% of 2 months — 0.20 months(c) NIL on 16 months — 0.00____1.45 months (rounded down)(d) 1.45 out of 23 months = 6%[15] The Judge imposed concurrent terms of imprisonment, with the assault chargescarrying the full period of imprisonment of two years, two months and 14 days.Mr Bonniface was sentenced concurrently to five months' imprisonment on thedriving charge and two months' imprisonment on the supervision breach charge.Victim impact statements[16] The victims had provided victim impact statements. The two victims wererespectively frightened and panicked by Mr Bonniface's actions, having believed heintended to drive straight into them.Principles on appeal[17] Appeals against sentence are allowed as of right by s 244 Criminal ProcedureAct 2011 and must be determined in accordance with s 250 of that Act. An appealagainst sentence may only be allowed by this Court if it is satisfied that there has beenan error in the imposition of the sentence and that a different sentence should beimposed.7 As the Court of Appeal identified in Tutakangahau v R quoting the lowercourt's decision, a "court will not intervene where the sentence is within the range that6 Hessell v R [2010] NZSC 135, [2011] 1 NZLR 607 at [74].7 Criminal Procedure Act 2011, ss 250(2) and 250(3).can properly be justified by accepted sentencing principles".8 It is appropriate for thisCourt to intervene and substitute its own views only if the sentence being appealed is"manifestly excessive" and not justified by the relevant sentencing principles.9Appellant's submissions[18] Mr McKenzie for Mr Bonniface accepts that each component of the initialsentence calculations (sixteen months, five months and two months) was within range.[19] Mr McKenzie submitted there were three errors in the Judge's subsequent stepsin sentencing:(a) a failure to consider and adjust for totality;(b) the imposition of excessive uplifts for offending on bail and criminalhistory; and(c) insufficient credit for guilty pleas.Totality[20] Mr McKenzie invoked the provisions of s 85 of the Act, relating to theconsideration of the totality of offending.[21] He acknowledged that the Court of Appeal has recognised that "the failure ofthe Judge to mention the totality principle is of no moment if the sentence imposedwas not out of proportion to the gravity of the offending".10 He submitted that thecumulative starting point of 23 months was clearly out of proportion to the cumulativeoffending. While accepting the sentence calculated on each of the three componentswas within range, they were in his submission each towards the higher end of theirrespective ranges. That called for a deliberate consideration of totality and anadjustment, which he submitted could have been two months, reducing the startingpoint to 21 months.8 Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [36].9 Ripia v R [2011] NZCA 101 at [15].10 Kite v R [2018] NZCA 485 at [21].[22] He submitted that the proximity of the end sentence to the two year mark (fora short sentence) makes that adjustment meaningful and one which should be made onappeal.Uplift for offending on bail[23] Mr McKenzie submitted that, while an uplift for offending on bail wasappropriate, the uplift ought to have been five per cent rather than the 10 per centassessed by the Judge.[24] Mr McKenzie submitted that the aggravated culpability is lessened in this casefor two reasons:(a) neither the disqualified driving nor the supervision breach reflectserious offending on bail; and(b) through delays in the District Court associated with COVID-19,Mr Bonniface had remained on bail for some two years before trial.Uplift for conviction for criminal history[25] Mr McKenzie submitted the Judge's 10 per cent uplift for criminal history wasexcessive. Focusing on previous convictions with similarity to the index offending,Mr McKenzie observed:(a) Mr Bonniface's last disqualified driving conviction was in 2010. In anyevent, given that previous convictions are a prerequisite for liability, nouplift would be justified on this charge given that it would not normallyattract a sentence of imprisonment;(b) Mr Bonniface (while receiving a sentence for breaching communitydetention in 2014) has no previous breaches of intensive supervision;and(c) although the Judge correctly identified the existence of previousviolence convictions, the last was in 2014.Overall uplift[26] Mr McKenzie then invited me to consider the overall uplift of 20 per cent. Hesubmitted it was plainly excessive. He suggested it does not stand comparison withthis Court's decision on appeal in Norman v Police where a global uplift of 15 per cent(six months) was found to be excessive and an uplift of no more than four monthsappropriate.11 Mr McKenzie properly drew to my attention that, notwithstanding theerror in relation to the uplift, the appeal against sentence in Norman was ultimatelydismissed on the basis a reduction of the two years and six months' imprisonmentsentence by two or three months would have amounted to tinkering.12Credit for guilty pleas[27] Mr McKenzie submitted the credit for Mr Bonniface's guilty pleas ought tohave been at least 10 per cent.[28] He submitted a full (25 per cent) credit should have been allowed for thedriving charge plea and a high credit allowed for the supervision breach charge plea.On the assault charges, he referred to the Court of Appeal decision in Aupouri v R.13The appellant in that case pleaded guilty to a downgraded charge at the end of theCrown case, after cross-examination of the complainant. The District Court Judge hadallowed a credit of 10 per cent. The Court of Appeal found a discount of "no morethan 15 per cent" was available.14 Implicitly it was recognised that at least 10 per centwas called for.Aggregated uplifts/credits[29] Upon the basis of Mr McKenzie's proposed adjustments (assuming a 10 percent uplift for Mr Bonniface's history was offset by a 10 per cent credit for his guiltypleas), the starting point of 21 months' imprisonment would become the (cumulative)end sentence.11 Norman v Police [2022] NZHC 808 at [42]–[44].12 At [53].13 Aupouri v R [2019] NZCA 216.14 At [16].Police submissions[30] For the Police, Mr Harvey submitted the starting point of 23 months was notout of proportion to the gravity of the overall offending and that any adjustment wouldamount to tinkering. He submitted the uplifts were stern but within range — the globaldiscount of five per cent for guilty pleas was appropriate and no more could properlybe given in the circumstances.[31] Mr Harvey submitted that, stepping back and assessing the end sentence, sucha sentence was appropriate and necessary to respond to the circumstances of thereoffending, the defendant's conviction and bail history, and his repeated breach ofCourt orders and sentences. In his submission, the sentence was not manifestlyexcessive.DiscussionTotality[32] The consideration of the totality of offending, required under s 85 of the Act,is to be considered before personal mitigating or aggravating factors are taken intoaccount.15 It was common ground between counsel, and I agree, that the threeindividual components of starting sentence were within range. That said, I do notaccept Mr McKenzie's submission that any of the components should be consideredat the top of the range. In particular, the assault charges, although not resulting inphysical harm, involved orchestrated conduct intended at the very least to terrify thevictims. A starting point of 16 months, in relation to a maximum penalty of five years'imprisonment, can be viewed as in the middle of the available range. It represents thedominant component in the overall starting point.[33] Turning to the totality principle, it requires (as expressed in s 85(2) of the Act)that the cumulative sentences "must not result in a total period of imprisonment whollyout of proportion to the gravity of the overall offending". This means the sentencingJudge, after considering the component sentences individually, must stand back and15 Polaapau v R [2020] NZCA 227 at [44].look in a broad way at the totality of the criminal behaviour.16 In R v Bradley the Courtof Appeal noted that the "standing back" stage was not mentioned in the reasons givenby the sentencing Judge in that case, and the tenor of the reasons made it at leastdoubtful whether the Judge accepted the importance of the totality principle.17 Here,as emphasised by Mr McKenzie, we do not have any indication of consideration ofthe totality principle in the Judge's sentencing notes.[34] In this case, there was no reason in principle to not apply the totality principleonce the individual components had been assessed. None of the component sentencesin themselves was reduced to a level that suggested totality had in some way beentaken into account on the way through. I am satisfied that, had totality beenspecifically addressed, some reduction of the starting point would appropriately havebeen allowed.[35] I accept that the two-month allowance suggested by Mr McKenzie (close to10 per cent) would have been appropriate.Impact on sentencing outcome[36] Then, in looking ahead to the end sentence, the adjustment of the starting pointfor totality has a significant impact on the available sentences even were the Judge'sadjustments before personal aggravating and mitigating factors (a net 15 per centincrease) to be applied. If the Judge's 15 per cent adjustment had been applied to astarting point of 21 months, it would have resulted in an end sentence of 24 months'imprisonment. Mr Bonniface would then have been eligible to have substitution of asentence of home detention considered.Personal aggravating factors[37] The Judge's uplift of 10 per cent for offending on bail appropriately reflectedthe fact that there were three distinct sets of offending while on bail. I accept assubmitted by Mr Harvey, that the 10 per cent uplift represented an appropriatelyheightened response on this account — stern but within range.16 R v Bradley [1979] 2 NZLR 262 (CA) at 263.17 At 263–264.[38] I also consider the 10 per cent uplift on account of Mr Bonniface's criminalrecord was appropriate — the most relevant feature of his history lies in his17 previous convictions for violence. While Mr McKenzie correctly noted the lastconviction was in 2014, some seven years before the index offending, there is a distinctconnection in seriousness between that index offending and two previous convictionsthat incurred warnings under the three strikes legislation. The earlier offences had anenduring relevance to the sentence called for.[39] There is no demonstrated error in the Judge's refusal to provide a discount inrelation to Mr Bonniface's eventual guilty pleas to the assault charges. The policecharges were unchanged from start to finish. The circumstances are thereforedistinctly different to those in Aupouri where a guilty plea after the close of the Crowncase was promptly made in response to a freshly reduced charge.18 In this case, theJudge's refusal of any discount is in line with the principles established in Hessell.19[40] Once it is recognised that there needed not be any discount in relation to theguilty pleas on the assault charges, the five per cent discount globally across thedisqualified driving and the supervision breach charges was (when regard is had to thecalculation set out at [14] above) plainly appropriate.Appropriate period of imprisonment[41] Accordingly, I consider a sentence of two years' imprisonment should beimposed.Home detention[42] The commuting of a short-term sentence of imprisonment to home detentioninvolves the exercise of a discretion in a way that gives effect to the purposes andprinciples of sentencing as set out in ss 7 and 8 of the Act.2018 Aupouri v R, above n 13, at [16].19 Hessell v R, above n 6.20 Manikpersadh v R [2011] NZCA 452 at [14]–[16]; Osman v R [2010] NZCA 199 at [20].[43] Here, the Judge did not come to address home detention as he was not imposinga short-term sentence of imprisonment.[44] For the purposes of sentencing, however, a report had been obtained from theDepartment of Corrections. The report, dated 3 October 2023, identified a proposedaddress (that of Mr Bonniface's sister) as a suitable address at which Mr Bonnifacecould serve an electronically-monitored sentence. The Department, on inquiries madeof the police and Oranga Tamariki recommended a sentence of home detention withspecial conditions.[45] Mr McKenzie informed me that the home detention address remains available.[46] I accept Mr McKenzie's submission that this is not a case where the principlesof sentencing require that the defendant serve a period of imprisonment rather thanmove to a community-based sentence. Given the relatively lengthy period sinceMr Bonniface was sentenced to a period of imprisonment (for offending in 2013/2014)a significant period of home detention will meaningfully address the sentencingprinciples. I also recognise that for his offending Mr Bonniface has already nowserved some prison time.[47] Since his sentencing on 5 October 2023, Mr Bonniface has served slightlymore than two months of his sentence of imprisonment. In these circumstances, it isappropriate that Mr Bonniface should be sentenced to a period of 10 months' homedetention rather than the 12 months to which a sentence of two years' imprisonmentwould normally be converted.21Orders[48] I order:(a) The concurrent sentences of two years, two months and 14 days'imprisonment on each of the two charges of assault with a weapon arequashed with effect from today;21 Taking the one for one approach adopted in Mason v Police [2022] NZHC 1845 at [35]–[36].(b) The sentence of four months' imprisonment on the charge of drivingwhile disqualified is quashed with effect from today;(c) The sentence of two months' imprisonment on the charge of breach ofintensive supervision is quashed with effect from today.(d) During the period of home detention, not to possess or consume drugsor alcohol other than that medication which may be lawfully prescribedand to submit to drug testing if and when directed to do so by aprobation officer.(e) To attend and complete an appropriate non-violence programme inaccordance with the directions of a probation officer to the satisfactionof a probation officer and the programme provider.[49] In substitution for the quashed sentences, the appellant is sentenced to homedetention for 10 months commencing today, to be served at the home detention addressidentified in the Department of Corrections' report dated 3 October 2023. Theappellant will be subject to the standard conditions set out in s 80C(2) of the Act and,in addition, the following special conditions:(a) Upon his release from custody, to travel directly to the home detentionaddress to be fitted with his electronically-monitored bracelet.(b) To remain at the address 24 hours a day, seven days a week unless anapproved absence is granted by the Corrections GM bail team.(c) To attend any counselling, Government, legal, medical, employment,banking or grocery appointments as approved by the Corrections EMbail team.[50] For the avoidance of doubt, the order disqualifying the appellant from holdingor obtaining a driver's licence stands unaltered.Osborne JSolicitors:Crown Solicitor, Christchurch for RespondentCopy to: A J McKenzie